I respectfully dissent

This story about an photographer who was repeatedly questioned after taking pictures of a bridge from a public park shows how in the the real world your constitutional rights and three bucks will entitle you to precisely one cup of coffee.

I have a case in which the police pulled over my client. At first the officer would give the reason for pulling him over, but insisted that he produce license and registration, which a motorist is required to do if driving. Later the officer said he was following up on a report of a suspicious person in the park. After checking the ID the officer returned to the car and ordered the client step out of the car and put his hands behind his back, refusing to explain to the client why he was being detained. When the client did not assume the position and continued to ask for an explanation, the officer put him in a chokehold and arrested him. It turns out that there was an outstanding probation violation warrant for my client and he had some contraband.

My take is that an anonymous call about a "suspicious person" (if the call is genuine) probably creates the reasonable suspicion for a Terry stop. Personally I think it is a stretch to say that a "suspicious person" report, is a reasonable articulable fact creating a suspicion that a person is dangerous, has committed, or is about to commit a crime, but I think most judges would rule that the report alone is enough for a stop. In fact a majority of judges on the Fourth Circuit would leap from the bench and immediately impose a chokehold on the report alone, but I digress.

If the person is stopped while driving the officer has the right to see a driver's license and at that point the discovery of the warrant, the arrest and search of my client became inevitable. If the person is not driving, the officer will still ask for ID. This allows the police to run a warrant check and enter the contact into the police database. If the person refuses to produce identification, sometimes the officer will threaten to charge them with resisting delaying or obstructing an officer. The idea is the officer is carrying out his duty of investigating the suspicious person and by refusing to provide identification the target is delaying or obstructing the investigation. Again I think this is a stretch, because I think the target does not have to assist the investigation and I do not believe there is any general duty for a person to carry photo identification. Also while the officer must have grounds to detain someone, there is no general right to be informed up front why you are being detained.

So in the example of the artist photographing the bridge, the officers had the right (maybe the duty) to investigate. At that point he was free to choose whether to answer questions or not, but if he had clammed up, could the detention continue until the suspicion was dispelled? Can a detention last for hours and still be considered brief? The moral seems to be while you may have the right to refuse to identify yourself, the price for that refusal may be fairly unpleasant.

The 16-year-old winner of wet T-shirt contest sued companies that had roles in sponsoring the contest after a neighbor told her family that film of her topless had appeared on the Playboy Channel. (Story in St. Petersburg Times).

I can just imagine the conversation over the back fence, "Hey, Ed! I got good news and horrifying news. The good news is I got the Playboy Channel. The horrifying news is that your daughter was on it last night."

I assumed the girl was in a public place so I wondered about the legal basis for claiming the right to control how the footage is used. Topless pictures of a minor do not appear to constitute child pornography under federal law since the depiction has to be of a under 18-year-old engaged in sexually explicit conduct or include the lascivious display of genitals or pubic area. Maybe the legal theory involved appropriation of her image without consent since as a minor she may have lacked the legal capacity to consent.